What is Discovery? Discovery Explained

In a nutshell, discovery is a procedure in which information is exchanged between two parties. This is a general description to be used for civil cases only (as opposed to criminal cases). The term “discovery” is very broad. It covers a wide variety of requests that one party makes to another in order to obtain information.

There are several reasons why providing one party with information regarding litigation is important, but under the American system, no other reason is more important than the concept of fairness and a fair trial. If one party withholds potentially powerful evidence or information from the other party, because that information is damning to their case, then that is not fair to other party, especially in a criminal setting, but almost as much in a civil trial. If a party has information helpful to their case withheld from them on the basis that the other party was in control of it and they knew it was harmful to their case, without discovery rules, the other party almost certainly would not be able to present their case fairly before a judge or jury.

Think about it this way: a chemical company is being sued for contaminating the water supply to a small town. They have information that shows that they knew about the contamination and continued on without working towards fixing the contamination or remediating it. If there were no rules that compelled the chemical company to release such information, then the people of the small town may have a very difficult time trying to prove that the water company knowingly continued to contaminate the water supply. (This is not the best analogy because there are likely other ways of obtaining the information, and there are probably ways that the chemical company could try to deny discovery of such material, but you get the gist).

Types and Scope of Discovery

Rule 192 explains the permissible forms of discovery:

(a) requests for disclosure;

(b) requests for production and inspection of documents and tangible things;

(c) requests and motions for entry upon and examination of real property;

(d) interrogatories to a party;

(e) requests for admission;

(f) oral or written depositions; and

(g) motions for mental or physical examinations

Tex. R. C. Proc. 192.1. There are also rule regarding what is and what is not information that can be admitted into discovery. Rule 192 further explains that,

“In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action … It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Tex. R. C. Proc. 192.3.

Put into perspective, Rule 192.1 outlines the various types of discovery allowed in a given case. Not all forms of discovery are needed in a given case, but they can apply to any type of civil case in Texas if necessary. Rule 192.3(a) provides a general scope of discovery applicable to all types of discovery under 192.1. It states generally that a party may request information that is not privileged, that is relevant to the subject matter in some way, and appears to be “reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a). The word appears is absolutely important to that sentence. It means that it doesn’t necessarily have to lead to the discovery of admissible evidence, and it doesn’t as a matter of face have to be “reasonably calculated”, it only has to appear to be reasonably calculated. That is very important. It provides the requesting party with just a little more leeway in their requests. That does not exclude the other party’s ability to object to requests, but they must assert that the request does not on appear to be reasonably calculated to lead to the discovery of admissible evidence. Taken together, rules 192.1 and 192.3 taken together help us to understand the types of discovery and an outline of their scope.

Requests must be made with relative specificity. Tex. R. Civ. P. 196.1(b). Under rule 196.1(b), the requesting party must provide the other party with what they’re looking for from the other party and in specific enough terms so that the other party will know what they are to send. Additionally under 196.1(b), if you plan on testing the thing produced for inspection in a lab or some other way, you must disclose what you plan to test or sample regarding any such item.

Objections and assertions of privilege will necessarily affect what is shared between parties, but we do not need to worry about these for now. The concept of discovery is what we are trying to understand

Compelling Discovery

Request for Admissions, Request for Interrogatories, Request for Production, and Request for Disclosure are the four most common ways to obtain information from another party. Requests for admissions and interrogatories are typically in the format of question and answer. The request for production and inspection of tangible things is just how it sounds, but it is usually provided in an enumerated form to provide the responding party with specific enough requests to know what needs to be found and produced. The request for disclosure is more like the first two. The party requesting disclosure may request that the responding party provide them with any and all potential legal claims/defenses in the litigation as well as any factual bases for their legal contentions. It also requests the responding party to provide their names, addresses and contact information, as well as name and contact information of any witnesses. But before we go too far, lets take a look at each of the four types individually.

Request for Admissions

Within the realm of written discovery requests you can request another party to make certain their position on certain facts or situations related to the case. They typically come in the form of enumerated sentences or descriptions of events. Responses to such a request can take the form of an admission or a denial. They can also be yes or no, true or false, but the point is always the same. The party seeking answers is trying to verify which facts are actually in contention in the case. This is actually a much more important tool in litigation than might originally appear. Sifting through the contested facts and circumstances to get to a set that are agreed on by both parties allows the court to get a better picture of the events that led to the litigation.

Request for Interrogatories

Interrogatories are slightly different from requests of admissions in that instead of admitting or denying specific things, they are requested to give an answer to a specific question. It is not that they are admitting anything, they are simply answering a question about a fact. A common question in an interrogatory requests that the responding party provide their account of the event or circumstances that gave rise to the litigation. That is the difference: In an interrogatory, you are giving an account or description of the events that eventually lead up to the litigation, or providing information about the parties involved, not admitting or denying whether those certain things happened, or about whether they happened in a certain way. The party responding only needs to respond to things that they have actual knowledge of, or can acquire the information through a reasonable search.

Request for Production

This is the more commonly known form of discovery. Once requested, the other side is required to compile information that they have and hand it over to the other side. This is usually done by both parties in a civil suit, and sometimes it is supplemented when new information is discovered. As always, there are certain privileges and exclusions that can apply to production requests. The requests have to be reasonably specific so that the other party knows what to prepare and hand over. When making an objection or asserting a privilege to production, it must be done in regards to a specific request, in writing, and state the legal and factual bases for the objection so that the other party knows what you are trying to withhold and why.

Request for Disclosure

Disclosure is a bit like an interrogatory in that there is a series of enumerated requests and questions to answer on a standardized form, but they usually aren’t as involved as interrogatories. Disclosure requests usually ask for the names and addresses of parties or persons with relevant information (witnesses, experts). For experts they request to know the information the expert will testifying to, and the information or documents they will be referencing. Disclosure requests will also contain requests for legal theories the party will be using at trial.

Responses

According to the Texas Rules of Civil Procedure, responses must be served on the requesting party within 30 days after having been served. However, if the request is received before the Defendant’s answer is due, such as being served with everything at once (notice of the suit, and request for disclosure, etc… at the same time). In that case, the response is not due until 50 days after service of the request. (Tex .R. Civ. P. 194.3, 196.2(a), 197.2(a), 198.2(a)).

Each type of response has its own procedural rules governing what the “content” of each type of response should be. For instance, the Texas rules for an interrogatory state that the response should include “the parties answers … and may include objections and assertions of privilege.” Tex. R. Civ. P. 197.2(b). But it also provides an option to produce certain records if the “burden” is substantially the same for either party to derive or ascertain the information from public record, responding party’s business records or a compilation of the business records. Tex. R. Civ. P. 197.2(c). This means that if the information is just as easily obtainable by the other party through the public record or the business records, the responding party can just provide that information and have the other party find it in the record. But you cannot just send the party on a wild goose chase through thousands of pages of documents. The answer that the requesting party sought must be “specified in sufficient detail” to allow them to find the information as easy as it would have been for the party who gave up the information.

Conclusion

It is important to understand that discovery is a broad term with broad goals. The concept of discovery encompasses many different types of information. The rules in Texas are meant to organize a broad and complicated process into a streamlined, understandable, and cost-efficient tool for both sides of the litigation. Knowing the what and how of the response is pivotal to providing the correct information to the other side. Understanding what can be objected to, or what could be privileged is paramount to the case. With discovery, it is about having a keen eye. A keen eye that is fixed on the minutia of the question or request, but also on the bigger picture of the litigation at hand.